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Knick v. Township of Scott, Pa.

Claims for takings of property against state actors should not
be treated differently than other fundamental rights claims and
relegated to second-class status. Thirty years ago, in
Williamson County Regional Planning Commission v. Hamilton
Bank, the Supreme Court pronounced a new rule that a property
owner must first sue in state court to ripen a federal takings
claim. As illustrated by this case, in which Cato filed a brief
supporting a property owner—joined by Prof. Ilya Somin, the
NFIB Small Business Legal Center, Southeastern Legal Foundation,
Beacon Center, and Reason Foundation—this radical departure
from historic practice has effectively shut property owners out of
federal courts without any firm doctrinal justification.

Rose Knick owns 90 acres in Scott Township in western
Pennsylvania, a state known for its “backyard burials.”
In 2012 a new ordinance required all “cemeteries” be
open and accessible to the public during daylight hours. It also
allowed government officials to enter private property to look for
violations. In 2013, township officials entered Ms. Knick’s
property without her permission and—after finding old stone
markers on her property—cited her for violating the cemetery
code. Fines are $300-600 per infraction per day. Ms. Knick took the
township to court; the state court dismissed her claims as
improperly “postured” because the township had not yet
pursued civil enforcement to collect the fines. When Ms. Knick then
turned to federal court, the district court dismissed her
constitutional claims, citing Williamson County’s
state-litigation requirement. The U.S. Court of Appeals for
the Third Circuit affirmed this Kafkaesque process, but the Supreme
Court agreed to further examine the case.

The failed attempt to gain meaningful review of a facially
unconstitutional ordinance showcases the unique challenges faced by
property owners asserting takings claims. If filing in state court,
the best they can hope for is review from a judge who may be
friendly to the government defendants responsible for the taking.
And when pursuing that state-court remedy, property owners face the
possibility of “removal” by defendants to federal
court—where that court then dismisses the claims precisely
because the property owner failed to fully pursue state litigation!
Adding insult to injury, if a property owner complies with
Williamson County’s requirement by seeking redress
in state court, but receives an unfavorable decision, a combination
of procedural barriers prevents federal courts from revisiting the
claims.

The Fourteenth Amendment, which explicitly protects life,
liberty, and property, cannot tolerate this state of affairs. And
there is no reason to believe that this anomalous treatment of
takings claims is what the Reconstruction Congress had in mind
when, in the face of pervasive state abuse, it enacted the federal
statute (42 U.S. § 1983) that guarantees access to federal
forums to vindicate federal constitutional rights. As an unsound
and impractical rule, Williamson County’s
state-litigation requirement has earned a burial of its own in the
graveyard of discarded precedent.